Bartel v. Bank of America Corporation

          Argued February 27, 2018

          Appeal from the Superior Court of the District of Columbia (CAB-5798-13) (Hon. John M. Campbell, Motion Judge)

          Matthew August LeFande for appellant.

          David M. Ross for appellee.

          Before Blackburne-Rigsby, Chief Judge, and Glickman and Beckwith, Associate Judges.

          BECKWITH, ASSOCIATE JUDGE.

         More than twenty years ago, appellant Richard Bartel purchased a cashier's check for $30, 761.00, made payable to "Dana McKinley or Edna McKinley or Richard Bartel," and left the check in the McKinleys' safe with the hope that it would serve as consideration for a business transaction that never came to fruition. When Mr. Bartel sought to recover the check over a decade later, it had vanished from the safe, both of the McKinleys had died, and neither Mr. Bartel nor the issuing bank had any record of where the check might have gone. Mr. Bartel filed suit against appellee Bank of America Corporation to enforce his claim for the value of the missing check.

         This is Mr. Bartel's second appeal from the trial court's grant of summary judgment to Bank of America. On remand after the first appeal, the trial court granted summary judgment again, finding that Mr. Bartel's claims were barred by laches, that he failed to satisfy two separate statutes governing the enforcement of a lost or stolen cashier's check, and that his sworn declaration of loss was insufficient. Mr. Bartel challenges each of the trial court's findings. We conclude that because Mr. Bartel "transferred" the cashier's check when he made it payable to the McKinleys and then left it in their possession, he is now precluded from enforcing his statutory claim for the missing instrument.

         I.

         In the trial court, the parties alleged the following during discovery and in support of their summary judgment filings. In 1994, Richard Bartel purchased a cashier's check in the amount of $30, 761.00 from Bank of America's predecessor in interest, NationsBank of Maryland, N.A. The check was payable to "Dana McKinley or Edna McKinley or Richard Bartel." The bank issued the check to Mr. Bartel and shortly after, according to Mr. Bartel, he and Dana McKinley placed the check in the McKinleys' safe. Mr. Bartel intended the check to serve as consideration for a contemplated business transaction with the McKinleys. Specifically, Mr. Bartel hoped that the McKinleys would sell their shares of a company of which Mr. Bartel was a majority shareholder—though he had "no specific reason to believe they would do so." After the McKinleys declined to consummate the hoped-for business transaction, Mr. Bartel left the check with Dana McKinley anyway on the chance that they would come to an agreement later.

         Mr. Bartel has not seen the check since he left it with the McKinleys in 1994. At some point, he reached out to the McKinleys to inquire about the check. According to Mr. Bartel, Dana McKinley informed him that he had not "touched or moved the check" but that he had "seen it on multiple occasions." Mr. McKinley added, however, that "he could not open the safe because he had fumbled a change in the safe combination, or alternatively, that his [g]uardian had changed the combination." Mr. McKinley's guardian was appointed in 2008 because Mr. McKinley was suffering from a deteriorating mental illness. Mr. McKinley's mother Edna McKinley died that same year, at which point she was "blind, over eighty years of age[, ] and immobile." Although Mr. Bartel alleges that Mr. McKinley told him that he never moved the check, there is no indication in the record that Edna McKinley made any equivalent representation. Mr. Bartel stated in a 2008 email that Rene McKinley, who was Dana McKinley's sister and Edna's daughter, had access to the safe at one point after receiving the combination from a family friend.

         In 2009, Mr. Bartel filed an action in Florida, where the McKinleys had lived, to obtain possession of the check. When the safe was eventually drilled open, the check was not found inside. Mr. Bartel later learned, from an inventory of Dana's and Edna's estates, that there was no record of a deposit into either of their accounts other than ordinary pension deposits. Mr. Bartel asked Bank of America to run a search for records relating to the check. A representative of the bank responded that there was no record of escheatment to the State of Maryland (where the check was issued) and no record of the check as unclaimed property in Maryland.

         Mr. Bartel submitted what he titled a "declaration of loss" of the check to Bank of America in 2013, requesting payment. In that declaration, he asserted that no payment of the check had ever occurred and that the original instrument had been lost. He attached a photocopy of the original check, emblazoned with the words "copy—not negotiable." The bank replied that it could not honor his demand for payment. The bank explained that, in conformance with federal law, it maintained records for seven years and was at that point—nineteen years from the date of issuance—unable to locate any information related to the check.

         Shortly after, Mr. Bartel filed a complaint against Bank of America for relief under D.C. Code §§ 28:3-309 and -312 (2015 Supp.)—two statutes that establish the procedures by which a party can obtain payment of a lost cashier's check or other ...